Judge Waldemar Żurek of the Kraków territory Court, known for his conflict for the independency of the judiciary, filed a study of a suspected crime committed by neo-Judge Maria Szczepaniec of the Chamber of Extraordinary Control and Public Affairs of the ultimate Court and juror Kazimierz Tomaszek. This is the first specified announcement concerning the defective position of the NS neojudges, which has been confirmed by many judgments of the European Court of Human Rights (ETPCz), the Court of Justice of the European Union (TSEU), the ultimate Court (SN) and the ultimate Administrative Court (NSA).
Neo-KRS and its consequences
The Neo-Judges are nominated by the controversial and politicized National Judicial Council (CRS), whose composition has been changed by the Law and Justice Government. The rulings of the ETPCz and the TEU indicate that the Chamber of Extraordinary Control and Public Affairs is not a legal court. justice Żurek accuses Maria Szczepaniec and Kazimierz Tomaszek of misappropriating the function of SN judges, which is an act described in Article 227 of the Criminal Code: “Who, claiming to be a public officer or exploiting a misconception of this another person, performs an act related to his function is subject to fines, imprisonment or imprisonment for a year.”
Controversial decision
In 2021 Szczepaniec and Tomaszek recognized the extraordinary complaint of the lawyer General Zbigniew Ziobry against justice Żurek. They overturned the final judgement regarding the property settlements with their ex - wife. This decision, issued against the opposition of neojudge Jack Fork, was declared invalid by Żurek due to the fact that it was issued by an organ that is not a court.
Judge Żurek: Symbol of free courts
Judge Waldemar Żurek is simply a symbol of the fight for free courts in Poland. He was the most persecuted justice in the PiS rule, with 23 discipliners in his account and the constant oversight of the prosecutor's office. Persecution has not broken his spirit, and now he seeks to hold the people who have contributed to his oppressive and repressive efforts to defend the regulation of law.
Combating neo-KRS and prosecution
Żurek had previously submitted notifications to the erstwhile president of the territory Court in Krakow Dagmara Pawełczyk-Woiczka, the current neo-KRS president, and to disciplinary advocates Zbigniew Ziobry for unwarranted discipliners. Additionally, he fought with prosecutors from Kielce who refused to prosecute his haters. His actions resulted – investigations were initiated against both the Kielce prosecutors and the haters.
A dispute with his ex-wife as an excuse for repression
The dispute with his ex-wife became an excuse for attacks on Żurek. After the divorce they divided the common property and the courts issued final decisions governing their settlements. In 2016, after being taken over by PiS, Żurek – as a associate of the old legal KRS and its spokesperson – began criticizing the reforms of Minister Ziobra. Attacks on his individual intensified, and prosecutors and pro-government media began to look for hooks on the judge.
Exceptional actions for Herbs
Attorney General Zbigniew Ziobro filed 3 extraordinary complaints with the home of Extraordinary Control and Public Affairs of the SN, challenging Żurek's favorable judgments regarding settlements with his ex-wife and a judgement ordering her to apologize. These complaints were based on repression of Żurek for his activities for the independency of the courts.
ETPC safety breach
In 2023, Żurek won an apology case in the Control Chamber, which did not take account of Ziebra's complaint. However, the home broke the safety of the ETPCz, which was to defend the designation of these cases by the neojudges of the SN. 1 extraordinary complaint concerning property settlements was inactive not recognized and the another was recognised in June 2021, erstwhile the ruling favourable to Żurek was abrogated.
Doubts about Extraordinary Complaint
In the notice, Żurek accuses neo-judges Maria Szczepaniec and juror Kazimierz Tomaszek of misappropriating the function of SN judges, which constitutes an act prohibited from Article 227 of the Criminal Code. The provision states: “Who, claiming to be a public officer or exploiting a misconception of that another person, performs an activity related to his function is subject to fines, penalties for restrictions of liberty or imprisonment for a year.”
The case concerns the resolution of an extraordinary complaint by the lawyer General Zbigniew Ziobry, which was taken into account by the Chamber of Extraordinary Control and Public Affairs. This ruling overturned Zurk’s favorable judgement on his property disputes with his ex - wife. Żurek stresses that this decision was unlawfully issued and so is invalid.
The Separate conviction of Neos justice Jack Fork
Judge Jacek Widło, president of the panel, made a separate conviction to the decision of the House, declaring the extraordinary complaint of Ziobra inadmissible and unfounded. The fork pointed to 3 main faults of the complaint:
- Failure to meet the formal requirements: The complaint did not comply with the formal requirements laid down in the Laws. The prosecutor did not show why the ruling of the Bielsko-Biała territory Court would violate the principles of a democratic regulation of law.
- No Legal Basis: The complaint was flawed and the lawyer General did not indicate how the ruling violated the fundamental constitutional principles.
- Infringement: The complaint should be dealt with at a proceeding with Żurek and not at a secret sitting.
It was argued that the extraordinary action should service to rise the manifestly unjust judgments which cannot be repealed in any way. In the case of Żurek, the process of property settlements lasted respective years and ended with a final judgement which only confirmed the common arrangements of erstwhile spouses.
ETPC and TEU case law
Żurek's announcement besides refers to the case law of the ETPC and the EU Court of Justice, which undermines the legality of the Extraordinary Control and Public Affairs Chamber. In the 2023 judgement in the case of Lech Wałęsa ETPCz, he considered that this home was not a court, and the extraordinary action was made for political reasons, violating legal certainty. The TEU took a akin position, pointing to the flaw in neojudge proceedings.
The Future of the Audit Chamber
The fresh Minister of Justice, Adam Bodnar, announced that he would not address any matters to the illegal Chamber of Control, and that it would yet be wound up, as would the extraordinary complaint. This position underlines the importance of the doubts about the legality of the House's activities and the appointment of neojudges.
Consequences of the Notice
If Żurka's announcement is accepted by the prosecutor's office, this may lead to serious consequences for neojudges and the functioning of the full judicial strategy in Poland. This announcement is another step in the fight for the regulation of law and independency of courts in Poland, and its results may have far-reaching consequences for the future of the Polish judiciary.
Summary
Judge Waldemar Żurek took a bold step, making a announcement to the D.A. regarding the neojudges of the SN. Based on many decisions of European and Polish courts, he tries to show that the activities of the Chamber of Extraordinary Control and Public Affairs are illegal and its non-binding decisions. This issue may be crucial for the future of the Polish judiciary and is an crucial component in the fight for the regulation of law in Poland.
How do we reconstruct the regulation of law?
In our opinion, solving the problem of neojudges, which would be without prejudice to any legal rules, would require zeroing out everything these judges have done. For applicable reasons, it is unacceptable.
If we are to decide individually about the position of neojudges, we are faced with a choice: we can either search the most (apparently) legal solution, which, however, will contain a hidden political decision, or we can adopt a solution openly violating the legal rules, but not concealing its political character.
And this choice, in itself, is simply a political choice.
We remind you that not only we and a large part of the legal community believe that neoKRS is an illegal institution. A akin view is given by justice Pszczółkowski, who, in a distant sentence, stated that the present KRS was not a body shaped as required by the Constitution.
Its arguments are based on the provisions concerning the composition of the National Court Board, in peculiar concerning Article 9a of the Act on the National Judicial Council. Changes in the membership of the KRS introduced in 2017 are contrary to Article 187(1) of the Constitution, according to justice Pszczółkowski.
The justice stresses that, in accordance with the Constitution, compliance with the requirements for the formation of the body, including the NRS, is simply a essential condition for that authority's ability to exercise its powers. In this context, it lists the anticipation of making applications to the Constitutional Court in cases relating to the independency of courts and the independency of judges.
This position is applicable for the assessment of the legitimacy of the National Court of Justice in proceedings before the Constitutional Court, especially in the context of budgetary issues and the freezing of judges' salaries. justice Pszczółkowski points out the importance of complying with constitutional standards in the formation of bodies which play a key function in the legal system, specified as the National Judicial Council.
"National Judicial Council in a composition formed pursuant to Article 9a of the Act of 12 May 2011 on the National Judicial Council (Journal of Laws of 2021 item 269, as amended; hereinafter: KRS Act) – added pursuant to Article 1 point 1 of the Act of 8 December 2017 on the amendment of the Act on the National Judicial Council and certain another laws (Journal of Laws of 2018 item 3; hereinafter: the Act of 2017) – is not a body shaped in the manner required by Article 187(1) of the Constitution," wrote a separate justice Piotr Pszczółkowski.
Further on, the TK justice explains why the current mechanics for shaping the composition of the KRS "shades the constitutional structure of this body".
‘This is for at least 2 reasons. Firstly, the legislator, by abandoning the established constitutional practice, entrusting the judges themselves with the election of judges – members of the National Court of Justice, and transferring this competence to the Sejm, granted this political authority a decisive influence on the cast of an excellent majority of the Council (i.e. the selection of 19 out of 25 members). Secondly, the legislator, erstwhile introducing a fresh mechanics for the selection of judges – the members of the NRS did not comply with the request that representatives of each group of judges of all types of courts mentioned in Article 187(1)(2) of the Constitution should be included in the Council,” states the separate sentence.
In the erstwhile period (i.e. from the establishment of the National Court registry in 1989 until the amendments were made in 2017), the selection procedure for the members of the Council was as follows: those elected from among the judges were selected by the judges themselves. More specifically, the 2 members of the National Judicial Board were elected by a general assembly of judges of the ultimate Court of that Court; 1 associate of the National Court of Justice was elected by a general assembly of judges of the ultimate Court of that Court of Justice; 2 members of the National Court of Justice were elected by a general assembly of judges of appeal courts of that court; and 9 members of the National Court of Justice were elected from among its members by meetings of representatives of general assemblies of judges in provincial courts. Additionally, 1 associate of the KRS was elected by the General Assembly of Military Court Judges from among the judges of those courts.
In the opinion of Piotr Pszczółkowski, the breach of the structural balance of the National Judicial Council resulting from the Constitution occurred erstwhile the legislature, by means of the 2017 Act, entrusted the Sejm with the power to elect 15 judges to be members of the National Court Register. According to the judge, the transfer of 19 people (including members of the CoR) from 25 seats in the Council to a single political authority made the bulk of the Council's composition dependent on the decision of the current parliamentary majority.
The Constitutional Court justice cites the judgments of the European Courts of Justice and Human Rights, which state that the National Judicial Council has lost the essential independency from political power and is incapable to make independent and nonsubjective selection of candidates for judges, nor to apply to the president of the Republic of Poland for the appointment of judges.
‘I believe that these reservations should be duly addressed besides to the ability of the Council to exercise another powers in the field of safeguarding the independency of courts and the independency of judges, including its usage to the Court of Justice with applications under Article 186(2) of the Constitution. I besides have the impression that the Constitutional Court has already seen the problem itself, refusing to mention to the case. K 12/18 examination of the legitimacy of the National Judicial Council to request only to confirm its own legal position. “” states the judge.
Piotr Pszczółkowski draws attention to the issue of representativeness of members of the National Court Register, which has been examined by the Constitutional Tribunal.
"The present model regulation makes the KRS, a body which, in accordance with Article 186 of the Constitution, is to uphold the independency of the courts and the independency of the judges, a body with much more crucial political support than the judge's."
The justice emphasises that, in accordance with Article 11a(2) of the Act on the National Judicial Council, entities specified as a group of at least 2 1000 citizens or twenty-five judges are entitled to apply for a candidate as a associate of the Council, excluding those who are at rest.
"There is now a request for very advanced political support in the selection of members of the CoR: Members who elect members of the Council (model 276, out of 460 Members), while requiring a very low minimum threshold of support for a associate of the Council expressed by the judiciary (only 25 judges of around 10,000 Judges). Similarly, the request for a candidate to be a associate of the Council to get the support of a minimum of 2,000 citizens of nearly 38 million people should be classified as a tiny representative," explains Piotr Pszczółkowski.
The justice recalls that the Constitutional Court, through its judgement in Case K 12/18 of 25 March 2019, decided to waive the constitutional review of Article 11a of the Act on the National Judicial Council, which gives emergence to a problem concerning the representativeness of the National Court of Justice and the procedures for collecting letters of support for candidates for that body. According to the judge, this decision was taken hastily and may lead to a misconception that the effect of the Constitutional Court ruling on the anticipation for politicians to elect members of the National Court of Justice means compliance with the Constitution besides in the remaining scope of the regulation on the selection of members of the National Court of Justice.
"A holistic knowing of the Constitution requires that, in order to effectively carry out the constitutional tasks of the National Courts: to diagnose the threats of the independency of courts and the independency of judges and to prevent specified threats, it is essential to have the legitimacy of a large part of the judicial community that can objectively measure the work and attitude of a candidate for a associate of the Council. The reason and experience of life propose that, in order to keep the constitutional balance of authorities, the participation and support of the judiciary community in the selection of members of a constitutional body to safeguard the independency of judges and the independency of courts should not be little than the participation and support of another authorities – those before which the KRS is tasked to safeguard the judiciary."
Thus, the justice of the Constitutional Tribunal confirmed our position regarding the deficiency of power to issue judgments by neo-Judges who usage an illegal body nomination.
The deficiency of power to give judgments by persons utilizing nominations issued on the basis of illegal competitions organised by a criminal body impersonating the KRS is besides justified in the case-law of the European Court of Human Rights (judgment of 22 July 2021 – complaint No 43447/19, Dolińska-Ficek and Ozimek against Poland of 8 November 2021 – complaint No 49868/19 and 57511/19, Advance Pharma sp. z o.o. v. Poland of 7 February 2022 — complaint No 1469/20, Broda and Bojar v. Poland of 29 June 2021 — complaint No 26691/18 and 27367/18, Grzępa v Poland of 15 March 2022 — Complaint No 43572/18, Wałęsa v Poland of 23 November 2023 — action No 50849/21), judgments of the Court of Justice of the European Union (of 19 November 2019 — Case AK of the combined actions C 585/18, C 624/18, C 625/18, judgement of the Grand Chamber of the Court of Justice of the European Union of 6 October 2021 in Case C-487/19), judgement of the Polish ultimate Court (judgment of 5 December 2019 III PO 7/18, OSNP 2020/4/38, order of the ultimate Court of 15 January 2020 III PO 8/18, OSNP 2020/10/114, resolution of the Joint Chambers of the ultimate Court of Justice of 23 January 2020 (BSA 1-4110-1/20) and judgement of the ultimate Administrative Court of 26 June 2019, Il GOK 2/18, judgement of 11 October 2021, Il GOK 9/18, judgement of Il GOK 10/18, Il GOK 11/18, Il GOK 11/18, Il GOK 12/18, Il GOK 12/18, Il GOK 13/18, Il GOK 21, Il GOK 20/18, Il 21).
We remind you that the case law issued by the neo-judges is repealed by law. In the case of civilian proceedings pursuant to Article 379(4) in fine k.p.c. and criminal proceedings pursuant to Article 439(1)(6) in fine k.p.k.
What is neo-KRS and neo-Judge
The National Judicial Council was elected in a manner incompatible with the Constitution of the Republic of Poland, which makes it impossible for the Court of Justice to recognise it in the light of the adopted line of the jurisprudence of the ultimate Court and the TEU as a body acting as acting and having the power to appoint judges. Any justice appointed by that unconstitutional authority and appointed by the president to execute is besides served by a noe-judge who has no legal capacity to issue judgment,
At this point it will be justified to rise that the problem of vocations of "judges" after the formation of the "National Judicial Council" as a consequence of changes in 2017 has respective aspects. The first is related to the provisions of the Constitution of the Republic of Poland, which impose on public authorities, including the legislator, the work of specified appointment of judges to judicial duties, which guarantees the essential minimum independency and independency of the bodies active in the nomination process. This body is the National Judicial Board. engagement in constitutional standards for shaping the judicial composition of this body, creating an chance for politicians to form the Council, i.e. the election of members of the judges of the Council in their entirety by parliament (excluding the 1st president of the SN and the president of the NSA), has caused this body to neglect to meet constitutional requirements. This makes in any event the appointment of a justice question arise, which accompanies any man who puts his case under the judgement of the court, whether this court is simply a constitutional court.
In addition, this is the second aspect – in the doctrine to which I have given my hand, and in the case-law, there has been a method of verifying the correctness of the appointment of judges based on tools that have been in the strategy since forever, but mostly not utilized to measure the fulfilment of minimum conditions of impartiality and independence. It is the institutions (in the case of preventive control) – iudex sspectus and iudex inhabilis, and in the case of follow-up control – the absolute appeal condition, which is the incorrect cast of the court. On this thought the position of the resolution of the 3 Joint Chambers of the ultimate Court of January 2020 was placed. The resolution contained not precisely the right differentiation: indicating that, in the case of an SN, due to the nature of that authority, judges appointed after a advice of the KRS formed after 2017, do not supply guarantees of independent and impartial ruling. For this reason, it was considered that only this organization flaw justifies the claim that specified judges are deprived of material votum. The resolution did not competition that these persons had obtained the position of SN judges, but it was found that they had no power to issue judgments.
The judgments of specified ‘judges’ so far have been affected by the defect, given the inadequate cast of the court, which should be regarded as a failure to fulfil the constitutional request of the competent court referred to in Article 45(1) of the Constitution of the Republic of Poland. Failed judges should not rule. From the date of the resolution, these judges shall be incapable to rule. They do not have a material votum, although they have the position of judges. In the light of the above, it should be considered that, pursuant to Article 91(2) and (3) of the jurisprudence of the Court of Justice of the European Union and of the ECHR, the rule of precedence of the application of the law
This is justified in the judgement of the Court of Justice of the European Union of 6 October 2021 in Case C-487/19, as well as in the erstwhile judgement of the European Court of Human Rights of 7 May 2021, action No 4907/18. I remind the hooded court that, in accordance with Article 9 of the Constitution, the Republic of Poland is obliged to respect its binding global law. In accordance with Article 91(2) of the Constitution, an global agreement ratified with the prior consent expressed in the Act shall take precedence over the law if that law cannot be reconciled with the agreement. The position of judges and the guarantees of the independency of courts, which constitute the essence of the right to a fair trial, are enshrined in the provisions of the European Convention for the Protection of Human Rights and are further confirmed in Article 6(3) of the Treaty on EU. In the present case, the judgement given on 7 October 2021 by the Constitutional Court in the present – defective – composition of the case in Case No. K 13/21, which reconciles the interests of citizens.
Our position on the neo-CRS and neo-Judges appointed by this unconstitutional body confirms the position of the European Commission, which decided on 15 February 2023 to mention Poland to the Court of Justice of the European Union in connection with the controversial ruling of the Polish Constitutional Court. The Commission opened infringement proceedings against Poland on 22 December 2021. – The reason was the judgments of the Polish Constitutional Court of 14 July 2021 and 7 October 2021, in which it declared the provisions of the EU treaties to be incompatible with the Constitution of the Republic of Poland, explicitly questioning the rule of primacy of EU law. Without doubt, in light of the content of the judgement of the Court of Justice of the European Union (Grand Chamber) of 19 November 2019 (Nos C 585/18, C-624/18, C 625/18) and the resolution of the full composition of the ultimate Court of 23 January 2020 (BSA I-4110-1/20), there is simply a basis for concluding that the institution designated to guarantee the regulation of law is breaking the law and commits the crime.
We remind you that the case law issued by the neo-judges is repealed by law. In the case of civilian proceedings pursuant to Article 379(4) in fine k.p.c. and criminal proceedings pursuant to Article 439(1)(6) in fine k.p.k.
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Judge Żurek accuses the neojudges of misappropriating the justice and informs the prosecutor
